Am I in a de facto relationship? A simple Australian legal guide

Have you ever wondered: Am I in a de facto relationship? Is a boyfriend a de facto relationship? If the answer is yes, then this article is for you. Keep reading for a complete legal guide of what classifies you as a de facto couple.

De facto relationships in Australia and whether you’re in one can sometimes cause uncertainty.

Usually, this is because people may not know exactly what qualifies as one and what it means legally. However, it’s important to understand these things so that if you’re in one, then you can protect your legal rights.

What is a de facto relationship?

A de facto relationship is a relationship between two people, who are not married to each other nor related, but who are living together on a genuine domestic basis. This applies to both heterosexual and same-sex couples and may apply to someone who is legally married to someone else while also in a de facto relationship (meaning a person can be married to one person and in a de facto relationship with another person at the same time).

The legal rights and obligations of de facto partners are similar to those of married couples; that is, they have a right to seek a property settlement and spousal maintenance.

A de facto relationship is legislated in Australia under the Family Law Act 1975 (Cth), while Western Australia is governed under the Family Court Act 1997 (WA). Individual states can also have legislation that affects the rights of de facto couples, such as the Property (Relationships) Act 1984 (NSW). This article deals only with the Family Law Act.

Am I in a de facto relationship?

Couples who have lived together for a minimum of two years without separation will automatically meet the threshold for a de facto relationship under the Family Law Act.

For couples who are in a relationship for less than two years, the Court will consider a variety of factors to determine whether a de facto relationship exists, such as whether:

• the couple have a child/children together;
• there is joint property (such as a house/mortgage);
• there have been substantial contributions by one party to the property of the other;
• there was a sexual relationship;
• the parties were financially intertwined;
• the social aspects of the relationship; and
• where the relationship has been registered with the state government.

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What does the Court consider?

The legislation around de facto relationships demonstrates that not all relationships are nuclear and that relationships can be complex.

The Court looks at the below factors when determining whether a couple are living together on a genuine domestic basis:

• The duration of the relationship:

  • What is/was the length of the relationship?
  • Any periods of time where the couple broke up and saw other people?

• Nature of residence:

  • Did the couple live together all or some of the time?
  • Did they buy a property together, or enter into a rental agreement?

• Whether a sexual relationship exists:

  • Are parties in separate bedrooms at any stage of their relationship?

• The degree of mutual commitment to a shared life.

• The existence of any children:

  • Both stepchildren and biological children.

• Whether one partner is financially dependent on the other:

  • To what extent are/were expenses shared?
  • Is there a joint bank account?

• The reputation and public perception of the relationship:

  • Do friends and family members view them as a couple?

It is important to note that it is not necessary to have all the above factors present, nor will one factor be given more weight over the other.

What happens if my de facto relationship breaks down?

If your relationship breaks down, it’s important to note that parties can apply to the Court to determine financial and parenting matters the same way as married couples.

Parties to a de facto relationship must apply for a property settlement within two years of the breakdown of the relationship. There is no time limit for parenting orders.

If you are uncertain about whether you’re in this type of relationship or looking for guidance about the breakdown of your non-marital relationship, it is advisable to seek legal advice.

There are also steps you may wish to take before you commence living with your partner such as entering into a binding financial agreement (known colloquially as a prenup) which will protect your assets and provide couples with a sense of certainty and clarity going forward.

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